Judicial Review

1
Judicial Review

• "The rules governing judicial review have no more
  substance at the core than a seedless grape."

2
Key Questions

• When can the court substitute its judgment for
  the agency's judgment?
• How much does the court defer to the agency's
  decision?
• Why is some level of deference to the agency
  critical to agency function?

3
Review of Rulemaking and Formal APA Proceedings

• APA 706. Scope of review
• http//biotech.law.lsu.edu/Courses/study_aids/adla
  w/706.htm

4
Questions of Law

• What are the different types of questions of law?
• Why are these essentially facial challenges?
• Is the agency more expert in law than the court?

5
Deference - National Labor Relations Board v.
Hearst Publications, Inc., 322 U.S. 111 (1944)

• Undoubtedly questions of statutory
  interpretation, especially when arising in the
  first instance in judicial proceedings, are for
  the courts to resolve, giving appropriate weight
  to the judgment of those whose special duty is to
  administer the questioned statute. But where the
  question is one of specific application of a
  broad statutory term in a proceeding in which the
  agency administering the statute must determine
  it initially, the reviewing court's function is
  limited. . . . The Board's determination that
  specified persons are 'employees' under this Act
  is to be accepted if it has 'warrant in the
  record' and a reasonable basis in law.

6
Persuasion - Skidmore v. Swift Co., 323 U.S.
134, 140 (1944)

• We consider that the rulings, interpretations and
  opinions of the Administrator under this Act,
  while not controlling upon the courts by reason
  of their authority, do constitute a body of
  experience and informed judgment to which courts
  and litigants may properly resort for guidance.
  The weight of such a judgment in a particular
  case will depend upon the thoroughness evident in
  its consideration, the validity of its reasoning,
  its consistency with earlier and later
  pronouncements, and all those factors which give
  it power to persuade, if lacking power to control.

7
Chevron U.S.A. Inc. v. Natural Resources Defense
Council, 467 U.S. 837 (1984)

• Clean Air Act Case
• EPA wanted to consider all of the sources of
  pollution within a given chemical plant as one
  source - the bubble model
• What would be the advantage of this for EPA?
• Why would environmentalists oppose it?
• The statute did not give clear guidance
• What should the court do?

8
Chevron Step One

• If the statute speaks clearly to the point, then
  you have to follow the statute
• This assumes that the statute is constitutional

9
Chevron Step Two

• If the statute is silent or ambiguous
• a court may not substitute its own construction
  of a statutory provision for a reasonable
  interpretation made by the administrator of an
  agency

10
What does it Mean to Be Silent or Ambiguous?

• Do you just look at the statute itself?
• Scalia, usually.
• Do you include legislative intent?
• Breyer, usually.

11
Political Control of Agencies

• How does Chevron deference fit with the political
  control of agencies?
• Is this a liberal/conservative view?

12
Miller v. ATT Corp., 250 F.3d 820 (4th Cir.
2001)

• The Family and Medical Leave Act (FMLA) does not
  define medical treatment
• The agency finds that visits to the doctor that
  do not require specific treatment are covered by
  the act
• What is the ambiguity?
• Did the court accept the agency interpretation?
• Why does this decision make practical sense?

13
What Agency do you Defer to?

• While many agencies may have some
  responsibilities under a given law, the court
  will only defer to the agency with the primary
  responsibility for administering the law
• Why would it be a problem to defer to more than
  one agency for the same statutory provisions?
• What if the question involves the jurisdiction of
  the agency?
• No clear answer

14
Food and Drug Administration v. Brown
Williamson Tobacco Corp., 529 U.S. 120 (2000)

• We will discussion this case separately.

15
Example - Court/Agency Conflicts in Interpretation

• Portland wants to regulate broadband providers
• Industry says they are telecommunications
  providers, thus not subject to local regulation
• Appeals Court agrees
• FCC promulgates a rule defining broadband
  providers as information services, which can be
  regulated
• Did the Appeals Court settle this issue?
• What if the Portland case had been decided by the
  United States Supreme Court?

16
Christensen v. Harris County, 529 U.S. 576 (2000)

• What did the court rule?
• Here . . . we confront an interpretation
  contained in an opinion letter, not one arrived
  at after, for example, a formal adjudication or
  notice-and-comment rulemaking. Interpretations
  such as those in opinion letters--like
  interpretations contained in policy statements,
  agency manuals, and enforcement guidelines, all
  of which lack the force of law--do not warrant
  Chevron-style deference.
• Why is this consistent with our definition of a
  guidance document?

17
When does Chevron Apply? - United States v. Mead,
533 U.S. 218 (2001)

• Chevron was a notice and comment rule
• Why does the notice and comment process better
  assure that an agency legal interpretation is
  sound?
• Mead is letter ruling on the classification of a
  product for tariff purposes
• No notice and comment
• Can be changed at a latter date without notice
  and comment
• Should this letter ruling get Chevron deference?

18
The Mead Test

• administrative implementation of a particular
  statutory provision qualifies for Chevron
  deference when it appears that Congress delegated
  authority to the agency generally to make rules
  carrying the force of law, and that the agency
  interpretation claiming deference was promulgated
  in the exercise of that authority.
• What would you look for to decide if Mead applied?

19
Back to Persuasiveness? - Barnhart v. Walton, 535
U.S. 212 (2002)

• The importance of interpretation to agency
  policy
• The period that the agency has held the view
• The legal expertise of the agency
• The complexity of the problem
• These modify Mead
• What can the agency due to strengthen its case
  for deference?

20
Public Citizen v. U.S. Dept. of Health and Human
Services, 332 F.3d 654 (D.C. Cir. 2003)

• Is the Medicare Manual a notice and comment
  regulation?
• If not, what is it?
• Does this look more like Mead or Chevron?
• Did the court find that the manual was a
  regulation with the force of law?
• How can the Medicare Manual be binding on
  providers if it does not have the force of law?

21
ABA Adlaw Conference 2008 - Justice Garland, 2nd
Cir, on Chevron

• If you have an ambiguous statute, and need
  Chevron deference, do not say that the
  interpretation is clear and there is no other way
  to construe the law. Say it is ambiguous and you
  are making a reasonable interpretation based on
  your knowledge of the statute and the regulatory
  circumstances.

22
Interpretation of Agency Rules

• Should interpretation of rules and statutes be
  the same standard?
• Are they?
• How are interpretations of rules treated
  differently?
• What perverse incentives does this give the
  agency?

23
Judicial Review of Facts
24
Scope of Judicial Review of Facts

• Congress sets scope of review, within
  constitutional boundaries.
• Since the Constitution is silent on agencies,
  Congress has a pretty free hand
• Congress can allow anything from a trial de novo
  to no review, unless such an action runs afoul of
  the constitution.

25
Trial De Novo

• You start over at the trial court
• Agency findings can be used as evidence, but
  there is no deference to the agency
• FOIA
• Used more by the states than the feds

26
Independent Judgment on the Evidence

• Decide on the agency record, but do not defer to
  the agency's interpretation of the record
• Sort of like appeals in LA

27
Clearly Erroneous

• Definite and firm conviction that a mistake has
  been made on the facts or policy
• Same as reviewing a verdict by a trial judge
  without a jury

28
Substantial Evidence - Formal Adjudications

• 706(2)(E) - only applies to formal adjudications
  and formal rulemaking
• Could a reasonable person have reached the same
  conclusion?
• Standard for reviewing a jury verdict or for
  taking a case from the jury
• Should a jury get more or less deference than an
  agency?
• Hint - substantial means some, not a lot, when
  you are the agency

29
Substantial Evidence - Informal Adjudications and
Rulemaking

• 706(2)(A)
• Arbitrary and capricious or abuse of discretion
• Same assessment of reasonableness as 706(2)(E),
  so the result is about the same as the
  substantial evidence test used for formal
  proceedings
• This is the most common standard

30
Some Evidence

• Scintilla test
• The agency needs to show even less than in the
  substantial evidence standard
• Only limited use

31
Facts Not Reviewable At All

• Congress can prevent certain types of judicial
  review
• Compensation decisions under the Smallpox Vaccine
  Compensation Act are not reviewable
• Enabling law is always reviewable unless Congress
  has taken away the court's subject matter
  jurisdiction

32
What if the Court thinks the Agency's Policy
Choice is Wrong?

• Should the court defer to findings which it
  believes are clearly erroneous, but are supported
  by substantial evidence?
• Why is this consistent with the political control
  of agencies?
• When the legislature gives the agency the power,
  it is also saying that it only wants agency
  decisions overturned in the most serious cases
• Courts have different political views than
  agencies and thus they should be esp. careful
  about reversing agency decisions.

33
Agency/ALJ conflicts Universal Camera v. NLRB,
340 US 474 (1951)

• Employer fires chairman after he testified at an
  NLRB meeting
• What did the hearing officer do?
• Believed the company and did not reinstate him
• What did the NLRB do?
• NLRB rejects the hearing officer's finding
• Reinstated the chairman with back pay

34
What is the key legal issue before the court?

• Should the court reviewing the NLRB's action
  consider the hearing officer's recommendation?
• Is the agency bound by the hearing examiner's
  opinion?
• Should the court look only to the part of the
  record that the agency relies on for their
  decision or the record as a whole?
• Court says you have to look at the whole record,
  including the ALJ's findings

35
When Are the ALJ's Findings Most Persuasive?

• What type of rulings by an ALJ carry the most
  weight with the court when there is conflict
  between the ALJ and the agency?

36
ALJs v. Court Masters

• Why is the deference due an ALJ different from
  the deference due a master appointed to a judge,
  whose findings can only be overruled if clearly
  erroneous?
• Where does the Master get the power?
• What if the agency does delegate final
  decsionmaking authority to the ALJ, then wants to
  change a decision?
• What about Louisiana and the Central Panel?

37
Do Chevron and Substantial Evidence Come to the
Same Result?

• Chevron is about interpretations of statutes
• Substantial evidence is about factual disputes
• What about mixed questions of law and fact?
• Does it really matter which standard we apply?